FERNANDINA BEACH WEATHER

Citizens’ attempt to amend City’s Land Development Code fails

Submitted by Eric Bartelt
June 18, 2015 9:40 a.m.

An overflow crowd greeted Fernandina Beach City Commissioners when they arrived for their regularly scheduled June 16th meeting. All seats in the Commission Chambers were filled 45 minutes before the meeting began, requiring many other attendees to listen from outside. What drew so many citizens was an Amendment to the City’s Land Development Code (LDC) that prohibited introduction of certain hazardous uses and materials into the City.

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The Amendment was created in response to the recently created Port of Fernandina Master Plan, which includes a variety of industries the Port could embrace in the future, including facilities for the bulk storage of flammable liquids, a coal transfer station, a fruit and vegetable fumigation facility, a liquid natural gas fueling terminal, a petroleum refinery, a phosphate shipping terminal, and a terminal for large cruise ships.

LDC 5 Chip RossThe Amendment being discussed by the Commission was a revised version that had previously included a longer list of hazardous materials and uses. Dr. Chip Ross developed the list and has revised it over time. The Amendment narrowly failed when it was reviewed by the Planning Advisory Board in April, after several PAB subcommittee meetings, so Mr. Ross revised the list again, after consulting various stakeholders, in hopes that it would have a better chance of passing when it came before the City Commission.

The final version of the Amendment lists five uses that would be prohibited: A coal transfer facility, a fruit and vegetable fumigation facility, a petroleum refinery, a phosphate shipping terminal, and a cruise ship terminal for more than 500 passengers. While these five uses are included in the Port’s Master Plan, they are not listed in the City’s Land Development Code Table of Land Uses, and are therefore prohibited. The LDC does contain a provision, however, that allows the City Manager to interpret the Code and determine whether a particular use is allowable or not. The Amendment, according to Mr. Ross, would eliminate that provision and prevent the City Manager from making those decisions.

Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier.
Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier.

While the Amendment was created in response to the Port’s Master Plan, representatives from Rayonier and RockTenn spoke at the meeting, expressing their concern about the process by which the Amendment came about. While Rayonier and RockTenn may have no interest themselves in developing, say, a fruit and vegetable fumigation facility or a petroleum refinery, they were concerned about the relatively easy path someone can take, as demonstrated by Chip Ross’s efforts, to create Amendments to the Land Development Code prohibiting industrial uses that could restrict the mill’s processes, and ultimately their viability. Their concern is that in the future they may face more proposed Amendments, putting them in a position of having to “bargain away existing property rights on a proposal by proposal basis.” They view banning certain industries as a violation of their property rights. In addition, their concern is that the proposed LDC Amendment is too broad, that “omnibus revisions” like this may set a new vision for industrial development, all of which creates business uncertainty.

Currently, any citizen can apply to the City to make a Land Development Code change by paying a fee of $800 and presenting the proposed change before the Planning Advisory Board. With PAB approval and subsequent approval by the City Commission, the LDC change would come about. It appears that process is not sufficiently encompassing of stakeholders or rigorous enough to gain support from the mills. The mills have indicated that a more acceptable route would be to initiate changes through the EAR (Evaluation and Appraisal Report) process, which the Planning Dept. and the PAB conduct periodically to make changes to the Comprehensive Plan. The next EAR review will be in 2019.

Several people spoke in favor of the Amendment and several against it. Those opposed were primarily people who worked at either RockTenn or Rayonier, and they included Tom Sweetser, General Manager of RockTenn and C.A. McDonald, General Manager of Rayonier. Adding to their opposition to the process, they stressed the mills’ compliance with environmental regulations; their direct financial contributions to the community; their volunteer efforts; their overall economic benefit to the City and the potential dampening effect on economic development that such restrictions, and the controversy surrounding the issue, would cause. Others implied that such actions could lead to the mills closing here and moving to China. This, despite the fact that the Amendment was originally directed toward the Port and it’s Master Plan, not the mills. According to Mr. Ross, however, RockTenn has stated publicly at PAB meetings “they wish to have the ability to have a a coal transfer facility so they can import coal by ship or barge.”

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Richard Bruce, chair of the Ocean Highway & Port Authority addresses the commission.

Among those speaking in opposition to the the Amendment was Richard Bruce, Chair of the Ocean, Highway and Port Authority, which oversees Port activities. He said he was speaking only as a private citizen.

Those in favor of the Amendment cited the dire environmental consequences that such uses and materials could cause, either through accident or through the normal conduct of business. Chip and Faith Ross both showed slide presentations that included photos of water and beach pollution in other places caused by one of the uses – coal transfer facilities. Others alluded to the health impacts associated with coal, the need to protect the island’s quality of life and tourism industry and the legal defensibility of the Amendment. (Click here to view public comment, Item 8.5 Part 1 and 2.)

Several of those in favor of the Amendment expressed support for the mills, but drew a distinction between the importance of the mills to Fernandina and the disastrous consequences that can occur when things go wrong with at industrial facilities. And, in his slide presentation, Mr. Ross asserted that the five uses are prohibited by the Comprehensive Plan and none were on the Nassau County Economic Development Board’s list of industries that they want to attract to Fernandina Beach. Click here to view what the various speakers had to say.

LDC 8 LentzAfter the final speaker, Commissioner Lentz recommended that action on the Amendment be tabled so that all of the stakeholders “can sit down and start with the Comprehensive Plan”, and that the PAB re-address the proposed LDC change “line-by-line-by-line”. Commissioner Gass responded by saying she didn’t think “our community could survive much longer at the rate we’re going, we’ve gotten to a fevery pitch…” and “our presentation to the community, the way we’re looking and sounding, the effect it’s having on our economic development, the effect it’s having on our tourism, the effect it’s having on each other.” She then made a motion to deny the Amendment, adding that the Commission could then look at the process of redoing it through the EAR process, “…but let’s put this to bed and move on, so that we can start healing in this community.” In something rarely seen, Commissioner Gass’ motion was seconded by Commissioner Poynter.

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Commission Tim Poynter

Commissioner Poynter’s comments echoed those of many who spoke in opposition to the Amendment. Saying “he wasn’t interested in a coal transfer facility or a lot of the other things mentioned,” he said he “had problem with the way it has come about and he didn’t think the process was correct.” He acknowledged the major effort that went into creating the Amendment, and respected what those who created it believed in, but nonetheless he had a problem with the process. He said, “This whole thing started with the Port and the Port Master Plan.” “Things have been added, things have been deleted, looking for compromise.” “We need to start over. We need to get the stakeholders in there.” He concluded by saying “he wasn’t interested in getting the City into a major legal battle with our major stakeholders here.”

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Mayor Ed Boner

Mayor Boner weighed in, siding with Commissioners Poynter and Gass by saying “…you typically look at how do you find a way to do something, not how to restrain use?” He added he “didn’t think this was the right way to go about it” and that “you don’t want to hurt a major stakeholder in the community.” Commissioner Gass added that what she found most disturbing about this was people attacking both mills and the Port as “faceless, nameless entities.” “They are not,” she asserted. “They are men and women who live and work in this community. They have a vested interest in what goes on at both the Port and the mills.” She urged a no vote and said, “Let’s go back to being the friendly, loving community that we have always been before and stop all this finger pointing and name calling…”

Commissioner Lentz also acknowledged the work that went into creating the Amendment and that if the Commission votes to deny the Amendment, staff and the PAB should continue to work together on the Comprehensive Plan and to bring all the stakeholders to the table. She concluded by urging the RockTenn and Rayonier people in the audience to attend the PAB subcommittee meetings on this issue.

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Vice Mayor Johnny Miller

Commissioner Miller then spoke in support of the mills, saying “nobody wants to see the mills go away.” But, he added he hadn’t heard anyone from the mills say they want to move phosphorus or fumigate vegetables with poison gas. He said while the process may have been flawed, he didn’t think there would be any change after going back and doing the process over differently. There still would be no interest on the part of the mills to transfer coal, fumigate with poison gas, move phosphate, refine petroleum, and have passenger ships with their engines running and blowing smoke. He said he was going to vote for the Amendment, regardless of what form it comes back to the Commission. Other communities that have suffered from coal pollution, Miller said, didn’t want their water polluted either, but it happened anyway. He said we have the opportunity to prevent that from happening here. Regarding the idea that all the controversy will keep industry from moving here, Miller questioned who those industries are and where they would be able to locate, other than at the airport. He thought if industries that pollute were looking at Fernandina as a place to locate, they would find we were “anti-coal dust” and wouldn’t want to locate here. He thought that was fine and they should go somewhere else to pollute. He concluded by again expressing support for the mills and protecting the jobs of their workers.

City Manager Gerrity then volunteered, if the Amendment failed, to sit down with both of the mills’ General Managers and work on each of the individual items in the Amendment. The Commission then voted and the Amendment was voted down 4-1, with Commissioner Miller being the only Commissioner to vote for the Amendment.

Editor’s Note: We are providing two letters to our readers. The first from Rayonier that summarizes its position on the LDC amendment, and the second from City Attorney Tammi Bach to Planning and Advisory Board Members copied to city commissioners stating her legal position.  (City Attorney Bach’s letter to appear shortly.)

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Eric BarteltEditor’s Note: Eric Bartelt retired as a corporate design consultant and moved to Fernandina Beach in 2004. His previously lived in Wisconsin. Since Eric’s arrival in Fernandina Beach, he spends his time volunteering, and playing soccer. We thank Eric for his contributions to the Fernandina Observer.

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